[Lanelle]

This is the summary of the H.R. Bill proposing new labor verification and enforcement laws that I received from the ANLA.
Please note that the ANLA is not advocating the use of illegal aliens.

ENFORCEMENT-ONLY BILL WITHOUT GUEST WORKER AND ADJUSTMENT OF STATUS PROVISIONS INTRODUCED IN HOUSE OF REPRESENTATIVES AND IS EXPECTED TO BE APPROVED NEXT WEEK

On December 6, 2005, the Chairman of the House Committee on the Judiciary introduced H.R. 4437, the “Border Protection, Antiterrorism, and Illegal Immigration Control Act of 2005” (referred to as the bill). The bill represents the long-awaited and so-called immigration reform bill that the House of Representatives has promised to pass this year. It will be reported out of the Judiciary Committee on December 8 and is expected to be voted on in the House of Representatives next week.

The bill cannot be sugar-coated. For employers, it is a terrible bill. Assuming that it included a workable guest worker program, it still would remain a terrible bill. Without a guest worker or earned adjustment of status program, it represents a death warrant for U.S. agriculture and a substantial portion of U.S. industry. As agriculture has said for the past 10 years, electronic verification of employment eligibility without a workable guest worker and adjustment of status provision will exclude 70% of our applicants. Under the provisions of the bill, employers also eventually will have to verify all employees, regardless of when they were hired, resulting in the probable loss of many experienced managers and supervisors.

A detailed summary of the bill follows. The key provisions that affect employers can briefly be summarized as follows:

It contains no guest worker or adjustment of status for undocumented workers for agriculture or any industry.

It would impose telephonic and electronic verification of employment eligibility documents upon all employers two years after enactment.

Employers would have to use the new telephonic and electronic verification procedures to verify the employment eligibility of all new hires two years after enactment and reverify under the new system all employees, regardless of when they were hired, no later than 6 years after enactment.

The bill does not simplify the documentation process required in the employment eligibility determination process by reducing the number of employment eligibility and identity documents available to applicants. It simply requires a study of the feasibility of using a Social Security card with a digitalized photo.

Employer penalties for hiring and continuing to employ undocumented workers, as well as failing to use the new telephonic and electronic verification system, would be substantially increased.

Definitions regarding recruiters and referrers important to the agriculture industry have been changed in a manner that would be unworkable.


Summary of Title VII of H.R. 4437—Employment Eligibility Verification

Telephonic and Electronic Verification. The current employment verification process relies upon employer examination of work authorization and identity documents by employers. If the documents appear genuine on their face, the employer must accept them. Two years after enactment, the bill would change this process by requiring that employers use a toll-free telephone or other electronic device to access a Social Security or Department of Homeland Security (DHS) data base to verify the validity of Social Security numbers (SSN) and alien documents used to evidence work eligibility.

Six years after enactment, private employers would have to use the new verification procedures to verify the work eligibility of all employees who previously have not been verified, even if they were determined to be work eligible based on facially genuine documents at the time they were originally hired many years ago. Many senior management and supervisory employees probably would be excluded by this process.

Verification Procedure. The new verification process would require that employers confirm through the government data base that the SSN or alien card are valid within 3 working days of hire. If they are valid, the employer receives a validation code that must be put on the I-9 Form or some similar document. If the government cannot confirm that the documents are valid, they give the employer and employee 10 days from the date of nonconfirmation to resolve the issue. If the employee does not challenge the nonconfirmation then it become a final nonconfirmation and the individual cannot be employed. If the individual challenges the nonconfirmation, verification of the validity of the documents must be obtained within the 10 days from the date of nonconfirmation. Otherwise, the person must be terminated. Nonverification codes also must be placed on the I-9 Form or its equivalent.

No Elimination and Reduction of Employment Eligibility Documents. One of the few positive aspects of a mandatory employment eligibility system would be the simplification of the hiring process by reducing the number of documents employers would have to verify to one or two. The bill does not do so. Several other reform proposals (such as the Dreier bill, H.R. 98) provide for such simplification by requiring the use of a tamperproof Social Security card and no others. The bill only studies the use of such documents but does not eliminate the use of any documents and the confusion such documents cause employers.

Recordkeeping Requirements. The recordkeeping requirements are the same as current law for new hires—I-9 Forms must be kept the later of 3 years after hire or one year after employment is terminated. For existing employees required to be retroactively electronically verified, records must kept for 3 years after reverification or 1 year after the employee is terminated.

Good faith defense. Employers who comply with the new verification procedures have a good faith defense if the system mistakenly indicates that an illegal worker is legal. But, if employers continue to employ persons for whom they do not receive a confirmation of employment eligibility under the new system, they are rebuttably presumed to have knowingly hired an undocumented worker.

Substantial Increase in Civil Penalties. The minimum penalty per illegal alien under the bill is $5,000 for a first offense, $10,000 for a second offense and $25,000 for a third or more offenses for knowingly hiring or continuing to employ illegal aliens, or failing to use the new verification system. In addition, the bill creates liability under the elevated fine structure by using ambiguous language that states that employers that provide information to the electronic verification system that they know or reasonably believe to be false are subject to the elevated fines. This seems inconsistent with the rationale of the electronic system that employers cannot independent of a government data base determine which documents are genuine and which are not. The bill provides for open-ended liability.

Under current law, the range of fines is between $250 and $10,000 for knowingly hiring or continuing to employ illegal workers. Failure to verify work eligibility by completing the I-9 Form properly brings a fine of between $100 and $1000 per I-9 Form under current law. Thus, under the bill it appears that employers that fail to use the electronic verification system are subject to a minimum of $5,000 fine per worker, plus the paper work violation penalties of up to $1,000 per person.

Mitigation of Civil Penalties for Small Employers. The bill attempts to soften the civil penalties applicable to employers that averaged employment of less than 26 full-time equivalent employees by reducing them by 60 percent. Thus, small employers would face a minimum fine of $2,000 per alien, rather than $5,000 for a first offense, which is substantially higher than the $250 to $2,000 under current law. Employers of between 26 and 100 workers would get a 40 percent reduction and those who employ between 101 and 250 would receive a 20 percent reduction.

This summary was written by Monte Lake.